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European Court Upholds ‘Feta’ as a Protected

European Court Upholds ‘Feta’ as a ProtectedDesignation of Origin for GreeceIn a judgment published on October 25, 20051, the European Court of Justice (ECJ) upheld the decisionof the European Commission to register the name ‘feta’ (Φέτα) as a protected designation of origin for awhite cheese soaked in brine, originating in Greece. Denmark, France, Germany, and the UK had broughtan action for annulment of Commission Regulation No 1829/2002 of October 14, 2002 registering ‘feta’ asa protected designation of origin. The four countries had argued that ‘feta’ is a generic name for the salty,crumbly white cheese, rather than a name denoting Greek origin.Legal Framework for Protected Designations of OriginA 1992 EU Regulation 2 established a system for protecting geographical indications and designations oforigin for agricultural products and foods. A designation of origin is:the name of a region, a specific place or, in exceptional cases, a country, used to describe theproduct or food;originating in that region, specific place or country, and1 C-465/02 and C-466/02 of October 25, 2005, Federal Republic of Germany v Commission.2 Regulation 2081/92 of July 14, 1992 OJ 1992 L 208, p. 1.EU Food Update | 2the quality or characteristics of which are essentially or exclusively due to a particular geographicalenvironment with its inherent natural and human factors, and the production, processing andpreparation of which take place in the defined geographical area.The ‘feta’ issue arose out of the Regulation’s provision dealing with non-geographical names -- there is nolocation in Greece known as ‘feta.’ 3 If a traditional non-geographical name that designates an agriculturalproduct or a food as originating in a region or place fulfills certain criteria, that name also qualifies as aprotected designation of origin. As with geographical names, non-geographical names must connote“quality or characteristics … essentially or exclusively due to a particular geographical environment with itsinherent natural and human factors, and the production, processing and preparation of which take place inthe defined geographical area.” 4 However, according to the same Regulation,5 “names that havebecome generic may not be registered.” A “name that has become generic” is one that relates to the placeor the region where this product or food was originally produced or marketed but that has become thecommon name of that product or food.BackgroundBy the time the European Commission published a Regulation, No 1829/2002, which included ‘feta’ in theregister of protected designations of origin, the issue was already controversial in the EU.6 TheCommission’s Regulation granted ‘feta’ Community-wide protection as reserved exclusively for cheeseoriginating in Greece based on an analysis that the relevant criteria were met. To be registered as aprotected designation of origin, a traditional name such as ‘feta’ that is not the name of a region, place orcountry must refer to an agricultural product or a food from a defined geographical environment withspecific natural and human factors capable of conferring on that product or a food its specificcharacteristics. According to the Commission, in the case of “feta”, these conditions were met, and thename ‘feta’ had not become the common name and, therefore, generic. In the Commission’s view, thelegal prerequisites for a protected designation of origin were fulfilled. Germany and Denmark, supportedby France and the United Kingdom, disagreed and applied to the ECJ for the annulment of the registrationof ‘feta’ as such a designation for Greece.The ECJ RulingThe ECJ’s October 25, 2005 judgment rejected the claims of Germany and Denmark and upheldCommission Regulation 1829/2002 registering ‘feta.’ The ECJ ruled that the quality and characteristics of‘feta’ cheese are essentially or exclusively due to a particular geographical environment, as required by3 The term ‘feta’ is derived from the Italian word ‘fetta’, meaning ‘slice’, which entered the Greek language in the 17th century.4 Article 2(3) of Regulation No 2081/92 of July 14, 1992 on the protection of geographical indications and designations of origin foragricultural products and foodstuffs OJ 1992 L 208, p. 15 The third subparagraph of Article 3(1) of Regulation 2081/92 provides that, ‘To establish whether or not a name has becomegeneric, account shall be taken of all factors, in particular:The existing situation in the Member State in which the name originates and in areas of consumption,The existing situation in other Member States,The relevant national or Community laws.’6 ‘Feta’ had been registered first, in 1996, at the request of Greece. However, in 1999 that registration was annulled by the Court ofJustice following actions brought by Denmark, France and Germany, on the grounds that the Commission had not taken any accountof the fact that that name had been used for a considerable time in certain Member States other than Greece.EU Food Update | 3the general regulation 2081/92 on protected designations of origin. The judgment also confirms that fetacheese must come from goats or ewes. The Court referred to “geomorphology” of the relevant area isdefined by the Greek legislation,7 that is, the mountainous or semi-mountainous nature of the terrain; theclimate (namely, mild winters, hot summers and significant sunshine); and the botanical characteristics,namely the typical vegetation of the Balkan medium mountain range. In sum, the Greek legislationestablished that the relevant area possesses natural features that are both homogeneous and sufficientlydistinctive from others.According to Article 1 of the Greek Ministerial Order, the milk used for the manufacture of ‘feta’ cheesemust come exclusively from the defined geographical area comprised of Macedonia, Thrace, Epirus,Thessaly, Central Greece, Peloponnese and the department (Nomos) of Lesbos. The Court concludedthat areas of Greece excluded from the defined area lack the natural features shared by the defined area.Therefore, the geographical area in question was not, as Germany and Denmark claimed, defined in anartificial manner. The ECJ emphasized that the milk used for manufacturing ‘feta’ cheese must comeexclusively from the defined geographical area. Taking the position that the areas excluded from thedefined geographical area were not negligible, the ECJ rejected the claim by Germany and Denmark thatGreece had sought to enable its entire territory to use ‘feta.’The Court also rejected the claim that ‘feta’ is a generic name and that the Commission failed to take dueaccount of such factors as the manufacture of feta in Member States other than Greece, the consumptionof feta outside Greece, consumer perception, or other Member States’ legislation. The Court’s findingsincluded the following:More than 85% of Community consumption of feta, per capita and per year takes place inGreece which suggests the consumption of feta is concentrated in Greece.The majority of consumers in Greece believe that ‘feta’ carries a geographical and not ageneric connotation. In Denmark the majority of consumers believe the name is generic. TheCourt lacked conclusive evidence regarding six other Member States.In Member States other than Greece, feta-type cheese is commonly marketed with labelssuggesting Greek cultural traditions and civilization. Consumers there appear to perceive fetaas associated with Greece, even if produced elsewhere. The ECJ therefore saw a likelihood ofconsumer confusion: the link between the name ‘feta’ and Greece is such that use of ‘feta’ bynon-Greek producers suggests a sales strategy capitalizing on the reputation of the originalproduct and creating a risk of consumer confusion.As for national legislation, only Denmark and Greece had legislation specifically relating to feta.The Danish legislation does not refer to ‘feta’ but to ‘Danish feta,’ which would tend to suggestthat in Denmark the name ‘feta’, by itself, has retained a Greek connotation.The ECJ concluded that ‘feta’ is not generic in nature and dismissed the action.ConclusionThe name ‘feta’ is a protected designation of origin that enjoys EU-wide protection and that, within the EU,is reserved exclusively for cheese originating in Greece. This ECJ ruling constitutes an importantprecedent that has a significant impact on non-Greek cheese producers who must change the name oftheir products since ‘feta’ will from now on be reserved exclusively for Greek producers. It remains to be7 Article 1 of Greek Ministerial Order No 313025/1994 of January 11, 1994.EU Food Update | 4seen whether the case will influence other non-geographic protected name designations, whether in theEU or elsewhere.Significantly, the EU Agriculture and Rural Development Commissioner, Mariann Fischer Boel, statedthat the ruling set an example for global trade talks where denominations of origin, including those ofwines, are often the subject of discussion and international negotiations.* * * * *For further information, please contact:Jacqueline Mailly Brussels, Belgiumjmailly@hhlaw.com+ 32 2 505 09 19Linda R. Horton Brussels, Belgium andlrhorton@hhlaw.com Washington, DC+ 32 2 505 09 31 or +1 202 637 6795Guglielmo Adinolfi Brussels, Belgiumgadinolfi@hhlaw.com+ 32 2 505 09 51Elefteria Nearchou Brussels, Belgiumenearchoui@hhlaw.com+ 32 2 505 09 55Gary J. Kushner Washington D.C.gjkushner@hhlaw.com+ 1 202 637 58 56www.hhlaw.comThis Update is for informational purposes only and is not intended as basis for decisions in specific situations. This information is notintended to create, and receipt of it does not constitute, a lawyer-cli